Clean Water Advocacy - Newsroom - AMSA in the News
'Gross Allocation' for Nonpoint Sources
In Draft Rule Has Broad Support, OMB Told
A draft rule to address impaired waters contains provisions to make a "gross
allocation" of pollutants to nonpoint source dischargers while setting specific
load limits for point sources, organizations familiar with the proposal told BNA
March 14.
The draft version of the so-called Watershed Rule enjoys wide support from
agriculture groups and other industries, as well as state and municipal
officials, representatives of these organizations told officials of the White
House Office of Management and Budget at a March 12 meeting.
These groups, which have been briefed on certain aspects of the draft, want the
administration to move forward with the rulemaking because it would revise the
total maximum daily loads program, which they say is riddled with problems.
2000 Rule Formally Withdrawn
In the meantime, the Environmental Protection Agency announced March 13 that it
had formally withdrawn a regulation issued in July 2000 that would have
significantly revised the TMDL program.
"In order to ensure that this nation's bodies of water are cleaned up, we need
an effective national program that involves the active participation and support
of all levels of government and local communities," EPA Administrator Christine
Todd Whitman said in a statement announcing the final decision to pull back the
rule. "Unfortunately, the 2000 rule, designed to implement the TMDL program,
fell short of that goal and others."
The groups meeting with OMB March 12 said they were trying to figure out what
was holding up the rulemaking. OMB officials said only that they "needed to get
to work" after learning that so many constituencies have voiced their support,
one official attending the meeting told BNA March 14.
Those attending the March 12 meeting and indicating their support for the gross
allocations concept include officials from the Edison Electric Institute, the
Association of Metropolitan Sewerage Agencies, the Association of State and
Interstate Water Pollution Control Administrators, the Federal Water Quality
Coalition, the American Chemistry Council, the National Association of
Homebuilders, the American Forest and Paper Association, the National
Association of Manufacturers, Dupont Co., the National Governors' Association,
the National Cattlemen's Beef Association, and International Paper.
Also, attending the meeting were officials from the Department of Agriculture
and the Small Business Administration.
EPA officials, who did not attend the meeting, have said the rulemaking is being
held up by negotiations over how nonpoint sources would be addressed.
Gross Allocation to Nonpoint Sources
According to officials with the various interest groups, EPA is considering a
plan to make a "gross allocation" of pollutants to nonpoint sources such as
farms or forestry operations.
States would then be responsible for determining how that allocation would be
divided among the nonpoint discharges, a process that most likely would be part
of the TMDL's implementation plan and not subject to EPA approval.
Under the current TMDL program, which operates under a 1992 regulation, states
identify water bodies that do not meet water quality standards. They then
develop plans outlining how amounts of the target pollutant will be allocated
among dischargers at levels that eventually will bring the water into attainment
with standards.
Point sources such as industrial facilities and wastewater treatment plants have
been saddled with the bulk of these allocations, despite evidence that in many
cases most of the pollution comes from nonpoint sources.
The draft Watershed Rule, as well as the 2000 regulation it would replace, seeks
to resolve this disparity.
Under the plan for gross allocations, a TMDL might specify that 60 percent of
the pollutant reductions be the responsibility of the nonpoint source
dischargers, for example. The other 40 percent would be specific enforceable
allocations for individual point sources, parties who has been briefed on the
rulemaking said.
USDA Officials Supportive
USDA officials and those representing nonpoint source dischargers said they
could support a rule in which the TMDL would set a gross allocation of
pollutants for nonpoint sources with the understanding that state regulators,
not EPA, working with local agriculture officials, would then divvy up that
allocation.
R. Mack Gray, deputy undersecretary of agriculture for conservation, told state
water officials March 11 that although he had not seen a draft of the rule in
six months, he did not have a problem with it as he understood it to be in its
current form. He made his comments at a meeting of the Association of State and
Interstate Water Pollution Control Administrators.
"At the EPA level, we want to see a simple point/nonpoint allocation," he said.
"If there is a sector-by-sector breakout [for nonpoint sources], we think the
state water agencies should do that."
He reiterated that position at the March 12 meeting with OMB, several who
attended the meeting told BNA.
Because no draft of the Watershed Rule is available, it was unclear what that
means specifically, since states for the most part develop TMDLs. A
representative for one of the nonpoint source groups said he interpreted it to
mean that the nonpoint component would not be approveable by EPA, and EPA would
not have enforcement discretion over the nonpoint source dischargers.
"It seems more consistent with how the Clean Water Act works, because EPA can't
really enforce against nonpoint sources," he said.
An official representing point sources said she thought the plan was good
because it would ensure that nonpoint sources shared responsibility for the
cleanup in a way that would make the TMDL more meaningful.
Environmental Groups Leery
The gross allocation concept may generate opposition from some environmental
groups.
Nancy Stoner, an attorney with the Natural Resources Defense Council who has not
seen or been briefed on details of the draft, told BNA March 14 that it would
not be acceptable for the agency to consider one number for nonpoint sources.
"You need to keep the specific allocations in there, because that's the way to
get them to do what they're supposed to do," she said.
NRDC and other environmental organizations have lobbied EPA not to pursue the
Watershed Rule, preferring instead that it do more to implement the 1992
regulation.
EPA's Absence Questioned
Some representatives said they thought it was peculiar that EPA officials did
not attend the meeting, since the Watershed Rule is an EPA rulemaking.
G. Tracy Mehan, EPA assistant administrator for water, told BNA that he and
other Office of Water officials have met with those groups and already "know
their message" and did not feel they needed to be at the meeting. Moreover, he
said he participated in a meeting with the groups "last week" at the agency in
addition to seeing their representatives regularly "in the halls" or other
venues.
"There was no hidden agenda," he said. He also said EPA was not holding up the
rule. Several EPA officials have told BNA the agency sent a draft of the rule to
OMB for informal review in September, and sent a revised draft in January.
Continuous Planning Process
Another key component of the draft Watershed Rule, one point source
representative said, is the emphasis on the continuous planning process, a tool
under Clean Water Act Section 303(e). The CPPs, as they are called, would be
developed by the states and would contain plans for addressing pollution
problems on a watershed basis.
These watershed plans would incorporate the requirements of the National
Pollutant Discharge Elimination System permit program and the Section 319
program, which provides funding to implement best management practices for
controlling nonpoint sources.
The CPPs would make sure the TMDL actually gets implemented, the official said.
State officials and others have said that provisions ensuring the TMDL actually
gets implemented are critical to the success of the program. The 1992 regulation
contains no such provisions, they said.
By Susan Bruninga